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tv   Tonight From Washington  CSPAN  December 26, 2012 8:00pm-11:00pm EST

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>> we don't always find newspaper editors and area embracing reporting. it's not just economics. is the discomfort that investigative reporting often causes in the newsroom. because it's troublesome. it's that more than the economics. if you're going to ruffle the feathers of somebody powerful that gives those people running into complaint to the publisher and destroys their legion over those and we are fortunate to go through the 70's and really almost all of our careers to work for people who are really strong enough right in that area, and let the chips fall where they may.
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>> akhil reed amar presents his thoughts on the interpretation of the u.s. constitution and what the author means by up to his passages. mr. amar posits the constitution can be understood by the original text alone or historical precedent. akhil reed amar discusses his book with supreme court justice clarence thomas of the national air cried -- archives here in washington. this is about 20 minutes. >> good evening. i'm the archivist of the united states and is a pleasure to welcome you to the national archives in theater this evening. a special welcome to our friends at c-span and the other media
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outlets who are with us tonight. we have a lot of special guests in the audience today but i want to single out a special welcome to senator mike reed who is a good friend of the national archives, senator reed from utah. [applause] who himself clerked for a future supreme court justice, judge alito when he was at the u.s. court of appeals on the third circuit. welcome. on monday the constitution of the united states turned 225. tonight's program is one of several that the national archives is presenting this month in celebration of the founding document, signed in philadelphia on september 17, 1787. tonight we are honored to welcome two distinguished guests to explore the past, present and future of united states constitution. our partners for tonight's program in honor of those of the
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constitution are the federalist society and the constitution accountability center and thanks for the opportunity to collaborate with you this evening. the declaration of independence was long heralded as the icon of our independence to nationhood. the constitution did not get as much attention. its declarations and it's for parchment pages to the declaration single sheets to cheer most casual readers. the lack of celebration however works to its advantage. over the years, the declaration was exposed to sunlight, dust and smoke but the constitution was never exhibited. when you view both original documents upstairs in the rotunda, you immediately see the difference. the declaration is faded to the point of olestra ability and while the constitutconstitut ion looks nearly as fresh as it did when the scribe jacob shell is was entered into the continental
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constitutional convention. celebraticelebrati ng constitution day on september 17 has been a long-standing tradition here at the national archives. it was the one day of the year won all four pages of the document were to lay to the public. since 2003, we have been able to display all four pages year-rounyear-round and the new cases in the rotunda at this year we have added something special to the 200 connie -- 225th anniversary. for the first time we will display the resolution of transmittal to the continental congress ,-com,-com ma sometimes referred to as the fifth page of the constitution. this momentous document describes how the constitution was ratified and put into action. you'll be able to see it starting on friday, september 14 and it will remain until constitution day on december 17. on the morning of constitution day, the highlight event of our celebration takes place.
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and naturalization ceremony for 225 new citizens to the united states. while the national archives has hosted this for decades it never ceases to the support and to defend the constitution for the actual document. link urge you to return over the next several days for more discussions on the special event of the constitution's birthday. on monday september 17 at -- from noon until 2:00 we do a happy birthday to the u.s. constitution and the theater and a special program in celebration of the signing of the constitution in the first 225 guests will join the founding fathers for cake after their performance in the allen theater. on wednesday ,-com,-com ma september 19, at 7:00 p.m., the constitution and the war of 1812 again here in the theater. this is the 2012 claude moore lecture, journalists roger mudd moderates a panel discussion on
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what so proudly we hail, the messages of the war of 1812. tonight we are privileged to hear two distinguished guests discuss the past, present and future of the united states constitution. akhil reed amar has joined yale university where he teaches constitutional law at the college and the law school. he received both his b.a. and j.d. from yale and serves as an editor for the yale law's journal. after clerking for stephen breyer when he was judge of the u.s. court of appeals for the first circuit professor amar joined the faculty of yale in 1985. professor amar is a coeditor of the leading constitutional law casebook, decision-decision- making and is th author of several other books including the constitution and criminal procedure, the bill of rights creation and reconstruction, america's constitution a
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biography and most recently america's unwritten constitution, the president's and decibels we live by. the honorable clarence thomas has served as an associate justice of the supreme court of the united states for nearly 21 years. he attended conceptual cemetery and received an a.b. from the college of the holy cross and his j.d. from yale law school. he served as an assistant attorney general of missouri from 1974 to 1977, an attorney with the monsanto company from 77 to 79 and legislative assistant to senator john danforth from 1979 to 1981. from 1981 to 1982 he served as assistant secretary for civil rights in the u.s. department of education and chairman of the u.s. equal opportunity commission from 1982 to 1990. he became a judge of the u.s. court of appeals and in the district of columbia circuit in 1990. president bush nominated him as
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associate justice of the supreme court and he took his seat on october 23, 1991. ladies and gentlemen please welcome justice thomas and professor amar to the stage. [applause] [applause] >> the thank you ladies and gentlemen for that extraordinarily gracious ,-com,-com ma warm welcome. thank you to the national archives and to the staff for making this event possible and thanks also, special thanks to the federalist society and the constitution accountability center and thank you justice thomas for being with us today as we marked the 225th earth
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day, 225th anniversary of our constitution. i guess i would like to start our conversation with the words of the constitution, we the people, and what that phrase means to you and how that phrase baby has changed over time thanks to amendments and developments. who is this a wee and landed folks like you and me become part of this, this week? >> well, obviously it wasn't perfect. that's an understatement. but you grow up in an environment, at least i was fortunate enough, where we believed it was effective. you know it's very -- pretty much acceptable or maybe
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in vogue somewhat today to be so critical or almost invariably critical of the country and pointing out what is wrong. there are obviously things wrong. there are obviously things wrong when i grew up in georgia, and that was pointed out. but there was always an underlying belief that we were entitled to be a full participant in we the people. that is the way we grew up. it was the way the nuns who were all immigrants would explain it to us, that we were entitled as citizens of this country to be full participants. there was never any doubt that we were inherently equal and it said so in the declaration of independence. of course there were times later on bad i too became quite
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critical and would make glib remarks in deciding the not so pleasant and reciting the pledge of allegiance or sing things that i thought were -- [inaudible] people can youtube and it's around forever. i grew up in an environment where the people around me believed that this country could be better, that the framework for it was there. we the people, we used to memorize the preamble of the constitution. it's so fascinating to think of these black kids in the segregated school in savannah reciting the preamble to the constitution of the united states or standing out in the schoolyard, saying the pledge of allegiance every day before
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school. everything so that obviously in front of you was wrong. you can go to the public library. you can't live in certain neighborhoods. you can't go to certain schools, but despite all of that, you lived under the advisement of people who said it was still our birthright to be included and continued to push not only to change the law but to maintain that belief in our hearts. i think today we sort of think that all of the work is done with the law in the heavy lifting for us was done here, because the people who raised us believed it was in here. the nuns who taught us believed it was in here. you know today, i was just down at louisiana state university and the go-to the southeast conference, there is this tremendous enthusiasm about
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football. i met die-hard nebraska fan myself so i understand that enthusiasm. but can you imagine, when i grew up, a country that did not allow us to fully participate and one of the 1 -- birthrights passed on i still have it, i still believe that it's -- and i think i resist that kind of attitude that it's all lost. it's the same attitude i have been. it's ours. it's ours to make the best of, to disagree about, to work with, to realize its imperfections but to keep working with it so when i think of we the people, there is a lot i think of the exclusion but the possibility and the eventuality of the
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inclusion of you and me. no one cares that what, 40 years ago you and i would not be sitting here talking about the constitution of the united states except to say we were excluded. and now, it's hardly noticed. except you're a sterling professor of law so they probably notice that. [laughter] >> you talked about k. for yourself, my friend. [laughter] >> you know, that is nice of you to say but you know, i really look back and i have to say the same people. i have tried to say it over the years and i think in the city, people have dismissed as well, you are being a pollyanna or something like that, but i still say it's all the people who never gave up and had every reason to.
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first in that line would be people like my grandparents. not the cynical people that these unlettered people who never ever quit, who got up every day and believe that even if they didn't make it, those who came after them would. it's almost as though they self sacrificed. they were self-sacrificing, offering for these two boys and the generations to come afterwards. so you know, people say you haven't, i haven't done this or that. you know, i think you and i both have people who gave the last full measure for us and many many ways. so i can't really take too many bows for that. >> there is so much there and over the course of our conversation i hope to reach the declaration of the independence
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and the last full measure, "the gettysburg address." you mentioned who was then and who wasn't, we and how that changed over time. ike just want to say little bit -- though i agree with you that it is a little bit cynical. there were solutions and we can't forget that. we didn't need everyone but just to pick up on that in who will segue toward some of the other things who have talked about. just so the rest of us, so we can all begin to appreciate how extraordinary this birthday is that we celebrate. so, 225 years ago, let's say august, 1787, self-government exists almost nowhere on the planet outside of the new world.
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you have a few sheep and herders in switzerland before there were swiss banks. [laughter] and holland in the netherlands are in the process of losing self-government and england has the house of commons but also has the house of lords and a hereditary king and so, you look back -- so it's a vast multitude on the planet but no self-government in russia, and china and india and africa, most of europe. you look back through the previous millennia and you have democracy and self-government existing in very few tiny city states, athens because they can't defend themselves militarily and even when it did exist people would speak the same language and worship the same god, the same climate and culture, a very small little
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area. that is all of world history. and you look today, democracy is half the planet. if you asked me what changed, what was the hinge of all of that i think i would say the word we the people. 225 years ago the hinge of world history because all of the conclusions at the time it was way better and more perfect and for the first time ever in the history of the planet, an entire continent got to vote on how they and their posterity would be, and there were lots of exclusions from our perspective that we wouldn't exist as a democratic country in the democratic world but for that. i would say it's the hinge of all modern history. before democracy almost nowhere and in the project is begun. it's not perfect. better than what we had before
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but not at all as good as what we have now. i think we have gotten better and i want to talk a little bit about how that process is it getting better. we the people do ordain and establish and it's pretty stunning what we actually did. it's not just that we voted. there was a pretty standard vote in a boat that could be lost and in fact it was voted down in rhode island and north carolina. but you wrote a very interesting -- in a case called ohio versus mcintyre and we also talked about free speech. people could be for the constitution are against it and no one was shut down and no one was put in prison. if they like george washington or didn't like george washington or gave an anonymous speech,
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just a proliferation, robust and wide-open uninhibited. up and down the continent. that is the year that we bark today, this month, the beginning of that so some thoughts on free speech and at that moment as you look back and then we will work our way forward in time. >> i don't have a lot of company in my views on mcintyre and anonymous speech but if you think about it, 225 years ago, you had the articles of confederation. you had a congress that did not work. it was not functioning. oh. [laughter] [applause] that was inadvertent. but you had ,-com,-com ma it was very interesting convention that
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arguably wasn't quite what they were authorized to do. you have the resolution that is going to be on exhibit that is interestingly worded. someone throws the word unanimous in it and it's used in an interesting way. but you know, think of going to washington and trying to get mount vernon and he doesn't want to leave because he's been away for over four years and he doesn't want to leave. he goes to philadelphia and they do it. they come up with this document, four months, and now you have it, going to the congress to the people. >> to the people. >> to the people to ratify. you know when i read about it, i am one of those.
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i get chills because that is the beginning of the development of the place that allows you and me to be here with all its warts. it's sort of the way i feel about my hometown of savannah. it's got a lot of problems but it's my home. that is the way i feel about the constitution. it's got a lot of problems. i don't know if i could do any better, but it's ours and we get a chance through this wonderful opportunity that we have in different roles, to make it all work, to try to understand, to try to make the country work. you know may be a part of the thing we could do is celebrate the birthday. would you have a constitution of everybody there was -- would you have the amendments to the constitution if mason was
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more cynical than adams? would you have the declaration of independence if jefferson was a cynic rather than someone -- [inaudible] would you have a constitution of medicine didn't care? all the nick of that stuff, you know? i have come to the point and i tell my law clerks, that i have been in the city doing these jobs now for half of my natural life. the only reasons to do them are the ideal things. it's always the things you believe in, the constitution of this country. i know that's not what to say in washington d.c. and you're supposed to say there's some angle, some methodology, this originalism, textualism.
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there are all these useless peripheral debates other than just doing our job as we can in trying to live up to our respective oaths, to make it all work. this is what we are talking about. in your book, that is what you are saying. you are saying we have the text but you also also have overhear this unwritten part. with all these things are happening over here to make it all work. no, that's not me. >> you mentioned both the declaration and the bill of rights. set the stage about why the constitution, a thing really worthy of our celebration, acknowledging who was part of it. men of ancient democracy that ever existed in the world, even if they had democratic constitutions, never had a democratic constitution making process. none of that was put to vote by the people themselves in athens
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or pre-imperial rome. 1776 as great as the declaration waswas, and not put to a vote, and it's the middle of the war and you can't have a fiscal -- philosophical debate and the constitution is put to a vote in which eight of the 13 states, property qualifications are lowered or eliminated compared to what they were before and then a year-long conversation in which people say, you know there are some problems here. its crowdsourced and we the people actually say, where the rights and we get the bill of rights because of that conversation. even before there is a text of the speech there is the practice of freedom of speech, five times the bill of rights uses the same phrases, the people, the first in the second in the fourth in the ninth and i think it's because it's coming from the people. this process of correction that you are talking about i think is
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connected to the democratic idea. when you get people together, you have to make sure that they are not secret. you have got to get them and keep them on board, keep them believing, keep them part of the game. maybe they won't win and they do and they call that the bill of rights. to keep the conversation going so that you can actually perfected and make it -- mcaleese make it better than it was the day before with the bill of rights. >> i don't know whether they are anti-federalist. maybe they didn't quite believe that the national government should be given unfettered authority. maybe they were the people who are saying we have got to have the bill of rights. you have to have authority with protection for the individuals. i don't know whether i would call them an anti-federalist that they were people who certainly saw that they had these god-given rights and they
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thought that this would be an intrusion upon it. think about it. would you have the bill of rights if you didn't have those that we would call anti-federalist? i doubt it. >> you are a fierce believer in independence of thought, and dissent, and not even george washington or ben franklin might've had a complete monopoly on all of this so it was usual that you had at george mason critiquing it. >> i think george mason seems like a pretty stubborn guy. the other thing was that you know, i think that he made it clear, he did not undermine the process. if you go back and look at the last days, george mason did not throw a monkey wrench into the works. what he did was he made it
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clear. he made it absolutely clear, he had his list of objections. he thought you needed a bill of rights. he was not a politician. he had -- he was not into making a lot of friends and allies. he was going to argue his point and then he was going to return. i happen to think that was pretty effective. he wasn't against it. remember he was very helpful in developing the constitution, with a strong national government. but, he wanted to build this wall that would make it clear that did not exist in sort of contradiction or in opposition to these individual rights. again, he wasn't cynical. he wasn't an obstructionist, but he was i think rightly adamant
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that it exists. >> here is one way of putting that a maybe we will start to move forward in time with your permission. the people who opposed the declaration of independence, we never hear from them again. they are basically cast politically and to avoid. the people who opposed the constitution, you think it could be better still and calling it anti-federalist. they become not cast out, they become present in united states. james monroe, vice president of the united states eldridge carriage or justices on the supreme court, daniel j. so it's extraordinary how they are kept in the process. >> but think about it, continues to play out. it's the same debate. what are the limits? i hear people today making it seem as though that when you talk about limits on the national government, that's
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antithetical to the existence of a national government. it's been in the original argument. the argument was always about limits. you know, you hear this kind of glib talk, oh these people are trying to push us back to the articles of confederation. that's ludicrous. that is not helpful. the very man who pushed for these limits actually helped develop the constitution. so the debate when you move it forward, whether you look at mccullough versus maryland, it's always arguing about whether there should be an national -- you are arguing about the same limitations. you can fast-forward to today. that debate is embedded in the very formation of the country from the beginning, from the time we adopted the constitution that debate existed and that debate has continued.
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there was a civil war fought not just over slavery which obviously i am the right side, winning. [laughter] i have a personal interest in that, and there are lots of these things, but at the same time you understand that there were some people still fighting that debate. engaged in that debate and subsequent to that even with the adoption of the 13th, 14th and 15th amendments, you still have it so we are still talking about what are the limits of national government? what is the role of national government? we protect individual rights and individual liberties etc.? >> let's actually move forward in time and start talking about the events that presses the 13th, 14th and 15th amendments and i want our audience -- you and i know this but i want everyone out there on c-span2 recognize that this month isn't
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just -- it's a very special anniversary. it's not just a 225th anniversary. i think the hinge of human history, this we the people moment, is also 150th anniversary to the month of the first initial emancipation proclamation, which is issued on immediately after the battle of antietam, which is fought september 17, 1862, 75 years to the day after the constitution has gone public. so, we -- this month not just the 225th anniversary of the constitution but the sauces quintanilla -- subsequent henao and he will have more to say about that at the end. so talk about some of our
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forebears, our founding fathers and you have some thought about every founding and about father abraham? you mentioned washington. may be bringing linking lincoln into the picture to and your thoughts about this new burst of freedom that begins with the emancipation and you have a family story. your grandfather, you ride in the book my grandfather sun sun and you mentioned that is grandfather was a freed slave so some thoughts about that? >> you know, for us in the south, abe lincoln was the great emancipator. i know there is a revision movement today. i am a big abe lincoln fan. i have photos of lincoln. i have a problem with the cynical revisionist. it a blank and meant quite a bit to us.
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you begin to see what the country is. it's like the beginning. you have got the south is one way of life with the peculiar institution that in my opinion is the single greatest immorality in the country. how can you have a free country with slaves? we understood that. it's a contradiction that contradicts the very founding of the country. but i at any rate, when i grew up, lincoln, he was the author of real liberty. you have the emancipation prop nation and field order number 15. >> tell us what that is. >> that was the order that freed the slaves in the eastern part of coastal georgia. and of course my family was on the island and plantations along
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the coast of georgia for over 100 years. we are from an island again just south of hilton head in the carolinas. the family would remain on that island even after the civil war. it was a storm actually, a hurricane in the 1890s that drove them into the more mainland areas. but the fascinating thing, the people who came from that not only maintain their culture but there was always this desire to be a part of this country. lincoln was the first -- 40 acres and a view on that promise went on for years. yet it was unfulfilled, but there was that promise and it was a promise of freedom, our promise of the 48th review so you would hear people talk about the lack of freedom in the same
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way that they talked about the unfulfilled 40 acres with a view. it directly affected my -- so it has a very special place in my heart and certainly i keep in my office a copy of order number 15 and a copy of the emancipation proclamation because i have course keep it mounted on my wall. by particular interest in it and what it is done for those who came before me. we are from a plantation, or part of my family is from a plantation south of savannah. my grandfather was raised and that is where we farmed, just across from a plantation where his grandmother had -- and his great-grandfather flooded in the 18 70's right after he was freed. as my grandfather said we all
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are going to be raised in the ways of slavery times and that is the way we were raised on that farm. it was a very hard life but it is a life and a way of life in which i am enormously proud. there is not than a moment in my life when i've had nothing but the greatest pride in the people who grew up under the most difficult circumstances with the dignity unmatched in the city than any other great city in this country. it's almost as though it is a nobility of humanity simply because of the dignity with which they bore the negatives that got in the way and the harshness of life. and as i say in my book, and i mean it, my grandfather is still the greatest person who i know of and who i know about. you tell me a person who could
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have accepted and not have a father, lose a mother and handed from pillar to post to his grandmother, no education and segregation, jim crow laws and more -- he rose above it and insisted that his grandson rise above it. fight it, participate, eliminate the wrong, but not be consumed by it or destroyed by it. i don't think you can get much greater than that. >> you and i are huge lincoln men. do you think at all in the culture that lincoln still gets his due? in so many ways, so much talk about the founding fathers and yet you said house divided speech. because of a contradiction and
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frederick douglass and others, that has a claim to be the greatest generation too. dewey today in our law and our culture give enough credit to the re-founding? >> i like to think of the great moments in our history when we talk about of course the revolution certainly the constitution that we celebrate now, 225 years. it's all coming apart and the country as we know it today is reshaped after the civil war. you teach in the area of the constitutional law. you are an expert. what would it look like if there were no 14th amendment passed? what would be the application of the bill of rights to the state
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states? so there is a whole -- there's so much that goes beyond the war. i tell my law clerks, you have to go to gettysburg. we pulled these little threads out of what we do every day. talk about textualism, originalism. is much bigger than that. you know i see some people here who argue before the court. i not once thought that the people who came there did not understand that what we did is larger than who we are. that we were engaged in an enterprise to preserve something that is truly great. do we agree? no more than the framers agreed, no more than mason and hamilton and re. but do we say they did not want it to work?
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no. that is the beauty of we the people. we the people agreed that we should have country, exactly what it should be. not to the point that we destroy it, but certainly to the point that we think we are protecting it and we are still here. so i think that lincoln saw what was happening. he saw the slavery, we could not exist half slave and half free. you couldn't do it. it was not going to happen. he understood that. you have to have the union and he knew ultimately it could not be a slave country that allowed slavery. now i know you have your revisionists and people quibble. i don't have time to pick all that land out of everything. lincoln preserved the union.
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frederick douglass you mentioned. i also have a portrait of him and i've had that portrait sunday -- since i won on the court a little over two decades ago. i'm a big fan of frederick douglass. what courage it took for him, a freed slave, to cite the declaration of independence, not something that is foreign to this nation but the founding document of this nation. he cited that is exhibit a in what was wrong with slavery. exhibit a. he did need to go to another, any other shores or any other ideology. it was our founding ideology. how can you be inherently equal and have slavery? how can you be free and enslaved another? he understood that. so we fought a great war. we go to gettysburg and what does he say? it's up to us, to make it all
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worthwhile. we are the living. we have the opportunity, finite amount of time to make it work. i hear people, you disagree with someone. that person's motives must be bad. i don't think that mason's motives could probably say that he is a dour man who maybe he wanted to make and so i war but
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rather as people who are i have. [inaudible] and in the years i have been there i honestly have they don't agree with so yes, i am a frederick douglass person. grew up loving these people want
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you to think of a little. you grew up in this
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and fighting at valley forge and the revolution, he would say it was worth it. to leave mount vernon to go to the constitutional convention. he would say was worth it, to leave to become president. he would say it was worth it. all of the absentees, i think they would say it and i think any of us should be able to say it. while i'm at lincoln person, i am a booker t. washington,
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frederick douglass, and i keep those around me to remind me of what our obligations are, yours and mine. >> the first time i think i heard you, you were talking about the declaration of independence. which of course mr. lincoln alluded to right out of the gate in the gettysburg address, four score and seven, 1863 minus in 87, that 1776 when do the math. our father began this imagery and any quotes from the declaration. our fathers brought forth a new nation and dedicated to the proposition that all men are created equal. that is the language from the declaration. you have often, you have thoughts about the declaration. it's up there in the rotunda alongside the gettysburg address and the emancipation and the constitution itself.
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i invite you, as you have talked about lincoln, to tell us a little bit about what you think of the declaration and its part in the american story. >> in the beginning we have these rights we are endowed with certain inalienable rights and we give up some of those rights to be governed by consent. that is critical. for me, when i started though, it wasn't so much about government. it was about what was the best argument against slavery. it was as simple as that. when you grow up under segregation, you take the founding document and you use it as the point to make to others who think that segregation is right. this is our founding document and we are inherently equal.
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the nuns ingrained in us the declaration and our faith in god. we were created equal, and they didn't have to go to the bible or a religious doctrine. they went to the founding doctrine, that we are created equal. that was always this thing you carried. when you were treated badly, when people try to -- you know i hear people say it affected your self-esteem. it never affected mine. absolutely at no point in my life because from day one, we were equal. it said so. the nuns said so in my grandfather said so and by golly the declaration of independence said so. it may have taken a war and it may have taken jim crow laws but still no matter how contradictory that was that
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document said we were equal. that is what got me started again, to read this great document, to reread it and talk about it. to talk about the founding. who knows how i became a judge, you know? i was only interested in the best about this country. with all its problems, the things that made it worth having and lo and behold, to come to the understanding that this founding document is a wonderful thing. and that was in the mid-1980s. i was the chairman of the eoc worrying more about budgets and getting in all sorts of trouble over the age discrimination and employment act and this hearing in that hearing, none of which was of great consequence as far as the structure of the country. but spending hour after hour
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learning about what you write about and teach so eloquently. i think that for me, that simple document, i think that one declaration of independence, and to then go to gettysburg and to think about its charge, to think about the carnage and the lives lost, the great battle before in fredericksburg and the wilderness. you talk about antietam and you talk about shiloh, manassas, all these battles people defending what they think, a way of life for slavery or what have you, all of that, all that bloodshed settle this contradiction.
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and we won. we have our country. and i like to go to gettysburg to say to my clerks, do we deserve this? do we deserve the sacrifice for the country that we have and are we living up to that? are we doing our part? >> just go anyplace. think of the people at the battle of the bulge or think of them at you know, during any war and just ask yourself, you know, let's assume without debating whether you should have had this, that, this war that, we have done our part and the thing i was told, was going to be a priest. that was really the only sort of goal that i had.
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what is a priest? you are called to do something. every ex-seminarian it's all nice like -- your call now is to do your part. to be able to earn the right to be here. >> you can mention in your book very prominently on the first page in the last page and i will mention it again, god. the declaration of independence has a very prominent, several prominent -- from the very beginning nature is god endowed by our creator. the very and in the most military language, appealing to the supreme judge of the world for the rectitude and i'm not talking about roberts, as great as he is.
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now, if you look at the constitution, and the references aren't so prominent. janie randall has talked about, one of my students wrote in adjusting paper about sundays accepted in the constitution but it's not very prominent in the preamble or another articles. just this week we heard debates or conversations about god on the coin, whether there was sufficient references to god on 9/11. so your thoughts about the role of references to god in our national discourse and our public culture. >> we don't think it's been prominent in the central part of our nation. you can argue nihilism or
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atheism. the first amendment, congress shall make no law to establish religion or their free exercise thereof. in other words, stay out of it. obviously it assumes -- and there is god. we knew what the religions were. the baptist conventions, they weren't like worshiping a pope. they believed in god. i'm not going to revise history. i grew up in a religious environment and i'm proud of it. i am proud of it but i thank god i believe in god or i would probably be enormously angry right now. so they i am grateful and unapologetic. >> one interesting sort of -- it is remarkable when we started talking a little bit about how the sub by this change over time
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and we could have could've also edit the 19th amendment, women becoming part of this ever greater ark of democratic inclusion. >> and prohibition. i will drink to that. [laughter] >> but that was repealed. in general most of the amendments, as you said before, maybe more perfect. >> or less perfect perk is. >> but then we got rid of it. >> i don't drink so i understand. [laughter] >> on revision is pretty extraordinary, the constitution freed every american to be eligible for public office. there is no religious test, and that wasn't a prominent feature of the state constitution. a lot of them actually had
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religious test. >> obviously new england, you had established a religion so i understand that but i'm just simply saying that the country -- i grew up in a time where people were respectful of religion and religious people. i'd grew up where the church was open all the time and nobody broke and. nobody engaged in religious conduct in the church. our church was in the inner-city. i walk to 6:00 mass to be an altar boy and i was a little guy. a u.s. government surplus book tag and scared of dogs more than anything else. but you know, i really like where i grew up. i can't transpose that are superimposed at, transpose it who are superimposed on the current day that our country is what it is. there are some of us who but for faith, we would be nothing.
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to tell me it was okay to keep trying. there was nothing in front of me that explained all of the hurt and the pain, the things that happened even in the city. there was nothing that could deal with it and to make you a better person, to force you to be a good person when everything around you could be mean and cynical and react and punch back so yeah, i mean i know all the smart alex. they know better than i do but they weren't there. they weren't in the tenements. they weren't in a key. they didn't walk in those steps and i thank god for the environment i was in of the people who have strong faith and the house i was than with people of strong faith. the schools i went to, and if we impose it on anyone else? no, it was ours.
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.. a belief in the trinity or in any particular -- so here is what -- actually, what strikes me the moment as we look back 225 years later at the process that is go developed. there was a project where most americans at the founding were mainstreamed protestants, main mainstream prod tentism today
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remains a huge part of the cup -- culture here is interesting. none of the justices on the court is a mainstream prod protestant. >> i have no idea. you have to answer that. >> of the four presidential candidates. [laughter] >> you spend lot of time following the stuff. >> only president obama who had a father -- it was an extraordinary openness actually. >> you know, i think we talk about it a lot. you know, i liked it when i was a kid. you didn't talk about it a lot. you lived your life. that to me -- we talk a lot about this person is that, this person is this. and then we pretended -- we i liked it when people didn't care. you -- i was catholic. you talk about a minority within a minority, within a minority.
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i was a black catholic in savannah, georgia. [laughter] now that is a what is an insular . >> discreet. >> insular minority. so but nobody bothered us. i was the only black kid in my seminary 1965. '64 there was another young man. i was there by myself for two years in savannah. nobody bothered me. i hear people say these things about their tolerance. there are identifying who is what a lot more. the -- i kind of like the idea that when you started, here you and i, neither one of us is caucasian. nobody is pointing it out. we pointed it out and said you are indian dissent. i don't know what people say. people say horrible things.
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i'm not black, so i'm a little doubtful i should say i'm black, you know. [laughter] but, i mean, here we are. nobody one is bringing it up. i think what you should be more concerned about is where we are we are the ivy leagues nap seems to be more relevant. but even with that, even with can nitpick all of it. these are good people. these are people who i go back to what i said, they are continuing what was started 200-years ago the great debate. they are good people. i mean, i sit next to justice ginsburg, how often we agree? >> [laughter] a lot actually. >>. >> we do? [laughter] yeah -- most of many cases are anonymous. >> the anonymous cases -- yes.
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[laughter] and the -- i agree with the nomtion cases. [laughter] i like that. that is a screwed move. there is one category of cases we agree. what are they? the anonymous cases. [laughter] but she is a good person. she is a fabulous judge. i like sitting next to her. you know, we are friends. look -- i think that what is you want. you want people who still are able to work together and get it right, but don't change their mind because they are there. just because it's sort of the fad. you want them to think. same way you had at the convention, we the people. the ratification debates. i would -- i want to spend time going back because that was a time -- you talked about people actually saying what they
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believe. people fighting about it, people caring about it. people are writing articles about it. federalist papers, people traveling, people having meetings at homes and in their churches, you can't do that, i guess. but you having people meeting in their -- in town halls. all of the time they are debating. people who actually read the constitution, this is fascinatings. that is something else too. do they actually read it? they tread back then. and they were not as universal available. there was no internet to read it on. but they somehow printed it and read it and talked about it. and the people who couldn't read had it read to them. and formed opinions. so i think, yes, it was a debate
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about this country, the formation, how it would evolve and what direction. i think it continues. it's the same debate. so you can talk about the commerce club, you can talk about equal protection, due process, substantiative due process, the first amendment, it's all the same debate. and it is the appropriate debates. it's one that i would wish would sort of try to reach the same eye level that we saw in philadelphia. and we're going see at other points in the ratification process. who writes like -- the sort of defenses and arguments you see in the federalists today? who writes them? who sits at home and drafts arguments we see, letters, you see -- you never [inaudible]
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these were people who were engaged and knew the constitution and these were not scholars. these were not people who had appropriated to themselves license, the soul license to interpret or talk about the great document. these were foreigners. these were business people. some of them who have formal education, some who did not. they cared about the country. i think you need to have that today. i think that, you know, i go back to your book, you talk about the written and unwritten constitution. the unwritten constitution is that sort of trying to bring to apply it to current events and problems and cases, and developments and the debate continues on each one of those. and that's why you see the court
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go different ways. that's why the arguments -- [inaudible] that's why the scholarship is so important. one thing i like about the tone of the book. it's so positive. it's refreshing. you know, it's not i have all the answers. here is some answers. let's talk about it. it isn't up here. i told my clerks, when we work on opinions, you have to explain -- take your parents, they rim gaunteds, they are -- immigrants they are bright people. i don't think they are doctors or lawyers. it's their constitution too. and we should explain it and get in a they interpreted in a way to make it s&l to them. -- assessable to them. that's what i think you're trying to do with your book. to make it assessable to everyone. >> here is one concluding note. we've been talking a lot about the past last 225 years, sort of arc of every greater inclusion.
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we didn't talk as much as we might have as women suffrage. that is a huge, of course, revolutionary moment of additional inclusion. the amendment that prohibition aside, generally tend to expand liberty and equality. which is pretty striking that in general the amendments do that and don't take us back. now here is a thought experiment. one, understanding of an unwritten constitution might be the constitution is still to be written. the unfinished constitution. they're not done. history isn't over. what amendments are imaginable over the next 225 years? if we look back . >> i hope you don't expect me to hang around. [laughter] >> just thinking about if we --
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because you and i spent a lot of our time thinking about 225 years ago, 150 years ago, 75 years ago. if we turn that time around, and try to think forward 75 years from now -- 225 years from now. any thoughts at all. these issues aren't going to come up before the court immediately. on so, you know, just thoughts on the democratic project in america or the world, you know, going forward. >> you know, i'm not that creative or that -- [inaudible] you know, i do think. i wonder when people look back, as we're looking back now, let's say we added something. will they look at what we have written and understand it? we actually thought about things or trying to score a point
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here? i would hope that we can say that we have made, at least they can say we have a made a positive contribution. as positive as you and i think of those at the convention, those who participated in the debate. they added something. you know, when we do opinions, i don't like to get to the back and forth with my colleagues and quibble. i like at the end of it to say this is what i think we should be looking at or approach we should be taking. that doesn't mean everybody should agree with me or they should change their minds. i just think that what you're trying to do is think it through, and tell them exactly what you think without personal attacks.
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there is enough of that. but just to add something. i think that we are obligationed, you and me, if we talk about the great document, we are obligated to try to improve it. >> yes. >> we are obligated to disagree. but in a way that is constructive. in a way that adds something. in a way that is worthy of the constitution. we think it's a document up here. and i think we are obligated -- you have kids. you teach them, they talk about things in a certain way and to each other in a certain way. to their parents in a certain way. to your parents in a respectful way. it's a great document. and, you know, i don't deny the flaws. i really don't. i have lived the flaws. i have lived the contradictions. i say it inspite of that. that it is to us to do the -- it's you and . >> absolutely.
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that's how we . >> but it's you and i. we're talking about it. i have a job. i start again this month to go back to that job, that we're called to do. you and i have an obligations to do it in a positive way. to add something. what i don't want, is someone to say, well, you know, he was there, but he was cynical, negative, and didn't think it through. remember notice i didn't say i agreed with them. i couldn't careless. that's not my point. the point is do you think it through and communicate in a way that adds to the development that you're talking about? think about that. think about . >> first justice john marshall. the great dissent. ferguson. >> do we probe on the majority
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opinion on the dissent? it's the dissent that won the day. sixty years later, it was the dissent. so you write it in a way that contributes. did you think when he was alone in dissent. >> sole dissenter. >> we are the soul . >> which is kind of interesting. but these little tidbits as i think sometimes as my wife says i get too caught up in the little things, we read the cases other and over and over and over again. the eloquence of it. you know, to think about what he said. we have our biases, people -- and -- but this document, this is what he said, this document knows no -- [inaudible] [laughter] this document well. he didn't quite said that.
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he said it knows no color. and i truly believe he added something. at that time, he was alone. people thought they could deal with us in a constitutional way based on our skin color. i have lived that. that is a contra contradiction what do you think we held on to in the words from justice harlem. it's my understanding that said was what justice thurgood marshall what he was disupon dent and thought he was having great difficulties in doing the right thing across the country. he would read that dissent, we both read it at different points. he a great man and me a little kid. and asked a giant and a kid merely trying to get out. and you now sit in the seat that thurgood marshall had. >> i sit in a chair.
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i think he occupied his own seat. [laughter] i think the, you know, i had spent time with him, i would like to say a word. people do a lot of talking on behalf of other people. i sat with him in the meeting when i first got court . >> thurgood marshall. >> courtesy visit that was supposed to last ten minutes and lasted two and a half hours. and he regaled me with stories, and i said to him, i wish that if i had the courage and the age that i could have traveled with him across the south. but i doubt i would have had the courage that he had to do that. and he looked at me, very quietly said i had do in my time what i had to do. you have to do in your time what you have to do. that was all the guidance. and perhaps when we talk about the great document, it sums up
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the those at the convention, they had to do in their time they had to do. they did it. and we have to do in our time what we have to do. will we do it? >> so with that, let me add one additional thought. and maybe bring our proceedings to a close. this conversation i think has been in the spirit you're calling for on our sponsoring constitutions, the federalists society and the constitution accountability center. it doesn't always agree on everything. i think they both agree on the idea of a serious conversation centered on this document. since i mentioned amendments, and i don't want to make too many predictions. ly say most of the amendments as
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a prablght call -- practical matter have the support of both parties. it's hard to get two-thirds, two-thirds, three quarters without both parties being on board. the great amendment of the 1960s. the great iconic statute of the 1960 civil rights act of '64, the voting rights act of '65. fair housing act of '86. republicans and democrats in the spirit that you are calling for, and i have one other thought since we're talking about our sponsoring institutions for this extraordinary conversation, that's the national archive -- i think that the framers of the constitution who were amending their regime, studied what had gone they studied the state constitution. saw which ones worked and didn't. massachusetts put the constitution to a vote let's put our constitution to a vote.
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most of the constitutions have three banch branches of government. let's go with that. most have vie -- an independent executive works well for massachusetts and new york. let's build on that. many of the bill of rights. george mason he gives u.s. virginia bill of rights. that's model for the federal bill of rights. abolition of slavery occurred in several states. and we have to study, you know, and make amendments. what has gone before us. we have the duty to the future, i think we danger it best when we actually are understanding or respectful of the past. that's part of the national archives is about. if i could just, on a personal note, tell you the story why i'm here. and justice thomas' presence needs no explanation. he's justice thomas. what the heck am i doing here? well, when i was 11 years old, i
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came to the national archives, and i got this document that is big, big verse of the emancipation proclamation, and it was edition of the emancipation proclamation. you can take a look at the 100th anniversary of september 1962 and the archives released that a special edition for kids like me. and i got my picture of maybe lincoln. i'm a lincoln man too. [laughter] you don't throw anything out. [laughter] >> i don't. and i came here. that is what made me not cynical. coming at the very young age to a place like this. being exposed to mr. lincoln and what he did for the union being
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exposed to the decoration of independence and the constitution. i'm here today because of that, honestly. i would live -- like to give special thanks to the national archives. i want to thank you for coming to this extraordinary conversation. i want to encourage those on the television add yen to come to the place, if you can. bring your kids. bring your grand kids and your grand nephew. bring the next generation here, and if you can't come here physically, experience the national archives online. you mentioned the internet. because i think,s if up to us, the living, we can't just think about the future without thinking very deeply about the past. i think this is a place that will help us do that thinking, and so i ask all of you to join me in thanking justice thomas and thanking the archives. [applause] >> thank you.
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[applause] [applause] [applause] every weekend on c-span2, booktv with 48 hours of non-fiction books. and every night this week and next, booktv and prime time here on c-span2. over the next four hours biography of president obama and the first lady. first a look at the gene yolings of michelle obama. and journalists and historian on the biography of barack obama. that's followed by edward kline who wrote the "amateur" about the president's life and career before reaching the white house. and later, the white house videographer for the first two years of the obama presidency. >> so this is always puts the missiles in cuba. the united states discovers that
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with our flight, our surveillance flights over there. then the tension builds and we have quarantine of blockade around cuba. one of the things that happens during the time the soviet submarine is found by american ships, and they start to drop missile charge, death charges on the soviet submarine. they knocked out the electrical system. carbon dioxide rising. people passes outside in the submarine. they have no communication. the commander of the submarine says load the or it torpedoes. let's attack. the war probably started already. we're not going to do summer salts down here. we're not going disgrace our country. they launch a nuclear torpedo. they set it to launch. fortunately one of the other commanders on the ship with a lower rank talked him out of him.
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he might have safe the world. it's close to the edge. it was one of the scariest moment of mankind. >> yeah. we didn't know this. we were teenagers. but my god, i'm so grateful. that's the criticism and kennedy and all this quarterbacking my god. we wouldn't be here to talk. director oliver stone and peter on the untold history of the united states. saturday night at 10:00 eastern on booktv after wards. part of four dais of non-fiction books and authors through new year's day on c-span2. up next booktv presents after wards an hour-long program where we invite guest hosts to interview authors. this week dale carpenter discusses his book. the book details a story of the landmark gay rights case lawrence v. texas. from the arrest of john lawrence
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and garner to justice kennedy's reading of the supreme court's decision in 2003. the ruling made same-sex sexual activity legal in all the states and paved the way for same-sex marriage laws. >> host: as you have written a book on the supreme court case of lawrence v. texas. a book that tells that story from the beginning to the end. give us a big picture was the case important? >> guest: i would say it's probably one of the most civil rights decisions or constitutional law individual liberty decisions from the supreme court over the past fifty years or so. and it's the most important decision so far for the rights of gay men and lesbian. it's an opinion that is important to a great many people, and i think we'll be long remembered on american
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constitutional history. >> host: tell me, in other words it was one sort of law that was in effect prior to lawrence, and lawrence changed the law in a big way. tell me a little bit about the head together lawrence case where the law was before and where it was after. >> guest: well, in a series of cases, and laws around the country, the states had banned so-called sodomy which certain specified sexual acts over many years. but texas had criminalized much of the old archaic sex offenses and solely focused on gay sex and criminalized gay sex. these laws came before the courts but state courts and federal courts over the years ending with a resounding defeat for gay civil rights advocates and a supreme court decision
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called -- that decision had declared that any of the court call righted to homosexual sodomy was at best facetious. there was no fundamental right to a thing. there was no right of privacy that extended to protect gay people and the intimacy even as adults. the law stood, the constitutional law stood until lawrence v. texas came along in 2003 and changed that. there was a development happening, though, at the same time which is that the states won -- one by one were prearling repealing legislatively or the own stated soily laws. we went from a situation in 1960 all fifty states had some kind of sodomy law which applies to
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heterosexual and gay sexual activity. to by 1986 about half the states having such laws. to 2003, when lawrence decided and still had thirteen states with such law. they were on the way out of the constitutional doctrine upholding them stood. and states like texas were resists and repealing the laws. the courts would not overturn them until someone was actually arrested until the home for allegedly having sex in violence of violation of the law. >> hosi think, it wasn't that during the years that the police were in large numbers aggressively going out and arresting people, but that as long as those laws on the books, gays and lesbians were branded as criminals under the law. i take that some of the biggest impact of the laws was on things like custody questions.
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adoptions, jobs, employment, in a lot of states you could be sort of branded as a criminal as long as those laws were on the books. >> guest: that's right. laws were only rarely enforced, in fact we have very few known verbal instances of sodomy laws against private activity between dpults where no minor is involved in a quasi public place is involved. very few examples. they did exist but they were few and far between. the laws were were used as a justificationover pretext for discriminating against gay men and let's bee began in every area of life. in fact the bowers v. hardwick decision was cited by federal courts and state courtses across the country as a reason not to provide any additional judicial protection to gays and lesbians from discrimination.
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police departments like the dallas police department banned the hiring of homosexuals on the grounds that these were people who were identified as a criminal class, and therefore should not be entrusted with enforcing the law. gay people could be and were banned from being teachers in public schools on the grounds that they were modeling criminal behavior for students. gay parents lost custody of the children or had the visitation rights restricted, antidiscrimination laws of all kinds were resististed on the grounds that we should not model or pretect what is essentially a criminal class of people. in every area of life, the sodomy laws were not so much enforced against sex but were enforced in fact in other ways. >> host: some unusual about the area of law. they were not enforced but they a powerful impact as long as
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they were on the books, and then low and behold, the laws were enforced in september of 1998, when the police went out to arrest two men in an apartment in-house ton, for what appears to be a false report. a false report. tell us how the case got underway. >> guest: well, that day, september 17 within 1998, which happens to be constitution day in the united states, these three friends john lawrence, robert you banks were moving funder around, they had finished their work for the day and decided to go to a restaurant where they had a few drinks and came back to john lawrence's apartment where they continued to do drinking and watching television and so forth. you banks and garner one of the two defendants in the lawrence
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v. texas decision who was himself black while robert was white, robert and garner got in to a kind of a fight orally perhaps involving some jealousy and he announced he was going get a coke out of the vending machine which was down on the first floor of the apartment building which john lawrence lived. he gets up from an easy chair in the living room, puts down the bottle of vodka he had been drinking from, goes over to a drawer in the kitchen, gets change out and leaves the apartment to go downstairs. but instead of getting a coke, he in fact put that money in to a pay phone and he called the harris county sheriff's office which was the police department in charge of that area, in which john lawrence lived. he reported to the sheriff's office that there was a black
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man referring to his partner ty roan garner going crazy with a gun inside of john lawrence's apartment. so that moment there was john lawrence and garner back in the parking lot and possibly another man. robert is on the first floor making the call to the sled. that was of course, a false report and he was later charged with filing a false report and spent a can couple of weeks in jail. it was a serious offense. once that report was made, then it becomes a high priority call for the sheriff's office as it would for any law enforcement agency a potentially dangerous situation for citizen. it's a dangerous situation for any law enforcement authority. a few sheriff deputies patrolling in the area turned around the car and head to the apartment complex looking for the apartment and this black man
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supposedly going crazy in a weapons disturbance. the first two arrive on the scene and encountered robert at the base of the stairs to john lawrence's parking lot apartment and asked where the man with the gun was and he pointed to the second floor at the top of the stairs where there was a landing toward john's apartment. he was joined by three other deputies and they decided to go up together. and at that point, they go up the stairs and what is called a tactical stack. one behind the other with the guns drawn. ready to deal with any weapons disturbance they might find. they arrive at the top of the landing with. they say, they knock on the door, and they say at that point, this is where the stories diverge, by the way, between the john lawrence and garner. on the one hand and the police
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on the other. they say they knocked on the door and effective opening it up. they looked inside the apartment, and they -- there was a light inside a living room. it's a small, two-bedroom apartment. >> host: they presumably announced police. >> guest: they announced sheriff department. they said it twice there was no radio on or television. they couldn't hear or see anybody when they looked in. they said it's an empty room, and they then begin to say, we're going search the apartment. two go off to the left looking to a bedroom on the side where they ultimately don't find anyone. and then the other two that lead deputy who arrived who was white and another deputy who was black went toward the back of an
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apartment where there was an kitchen area. they saw a man speaking on the telephone right besides the refrigerator and told him to put the hands up. which he complied with that. and they checked to make sure he had no weapon. secured him, at that point they say they noticed a another bedroom in the back of the apartment, a few feet away, still hearing nothing, no voices or responses, not having seen anybody else, the light is off inside the bedroom, but the door is open. so they can see from the ambient light of the living room somewhat in to the bedroom. so these two officers out of the four, the two officers approach that bedroom door, they have their guns drawn, they are dread -- ready to deal with anything they might encounter. very dangerous situation for them and anyone they might encounter. tension is high.
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the black police officer lives first at the door and looks in and says he saw john lawrence and garner engaged in some kind of sexual act. he was not sure when i interviewed him later what it was. he believes they were having oral sex, which would violate the texas sodomy law. the homosexual law in texas. and that -- seeing that act so startled him that he lurched back. he jumped back. the officer behind him who had been the first one on the scene, thought at that moment he must have seen the gun slinger, the person who was threatening people in the apartment with the gun. so he got in to a crouching position and with his gunpointing straight ahead. he maneuvers to the bedroom where the light is off. he said he said he saw john and garner on the bed having able
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sex anal sex. both of the acts would have violated the texas sodomy law. the officers say they then told john lawrence and garner to stop what they were doing and told them to stand back from each other away from each other. and they would not stop, according to the officers. with guns pointed at them, very loud male voices yelling at them inside the bedroom. finally, one of the officers said he flipped on the light in the bedroom so everybody could see everybody very clearly now and he says they would still not stop. and in fact, he said john lawrence turned around and looked eye to eye at the office and looked back and continued what he was doing. for an assessable minute, he said, until finally the officers had to literally pry them apart to stop them from violating the
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texas homosexual conduct law. that is the story the officers tell. they say that was a violence of the texas law, and it doesn't matter where whether that act occurred inside a home or in a public place. it was a violence either way, if it occurred between two people of the same-sex. they had two decisions to make about what to do. one decision is issue them a citation issue something of a traffic ticket for a moving violence. it was a class c misdemeanor, punishable by $200 fine. it's not a jailable offense by itself. it's not something for which you're sentenced to any prison time. and the police officers have discretion simply to issue someone a warning when they violate that sort of minimal criminal law just as they do when people are speeding.
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but the lead officer on the scene decided that he was going issue john lawrence and garner tickets for having engaged in homosexual conduct. part of that, we can get in to why he might have done that. i have some idea about that. the other decision he made was not simply to issue the ticket, but actually to take the two men to jail. and that's what the officers did proceeding to take them down the stairs with neighbors watching, john lawrence clad only in the underwear, put them in the patrol cars and take them to jail where they spent the evening. >> host: did the officers explain why they made the decision to take the two men to jail? >> guest: yes. the officers, the lead officer and the oh officers on the scene, only two of them claimed to see any signed of violence of the law by the two men said that
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they simply enforced the law. the men were violating the homosexual conduct law, it's not their job, they said, to decide which laws to enforce. they have to enforce all of them. i asked the offices about that a little bit, and i asked them for example when they patrol the streets of harris county, in their jurisdiction, do they ever come across an opposite sex couple parked in a dark country lane somewhere engaged in sexual activity, which is a violence of public laws in texas. a more serious offense, by the way, under the texas criminal code, and they said yes, that happens frequently. i said, what do you do? and one of the officers said, well, we make sure nobody is a minor, we make sure it's not a rape that is consensual. if it is, if it is -- if there is no minor and we tell them get
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the clothe back on. you shouldn't be doing it back here. go back to your home or find a hotel oring? but we don't issue a citation. i said, well, then obviously you have discretion about whether or not to cite people for having sex. what was the difference in this case? after all these men were in a home assuming they were having sex. they had nowhere else to go to. he said well, it was a man and a man. what made the difference is we had two gay men here. and so the reason the officers gave is true. they have the power to enforce the law if in fact they saw the law violence, which i doubt. but there's probably a single reasons behind it, that is that the officers very quickly learned they were gay men. there was gay erotica inside the apartment. john lawrence acknowledged this
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and garner in interviews i conducted for the book. there was a trigger that went off in their minds triggering a kind of deep-seated an team think for homosexuals. i think it had a great deal to do with the decision to cite them and to arrest them. then there was at fact that john lawrence was talking back to them. he was calling them storm troopers and thugs and telling them he was going call his lawyer, and the lead officer in the case really did not appreciate being talked to that way. and i think they were upset because they had been called on a false premise to the apartment and wanted to somebody needed to pay for that. [laughter] >> host: in read your book, you gave the basic facts of what happened in the apartment and how did the case went forward that the men were arrested for having sex in the apartment. it seems shocking you could be
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arrested in 1998 nor your own apartment for something like that. after reading your book i got the impression, the sense, that none of this was true. that there is a reason to doubt the basic -- there was sex in this apartment, and the lead officer you did a very fine job of reporting on. he had arrested mothers at school for dropping their kids off like at the wrong place in front of the school and taking them to jail. so he seemed to have a hair trigger as far as if he felt insulted of putting you -- a person under arrest. tell us sort behalf you learned after going doing a lot of reporting on what may have actually happened here. >> guest: well, you know, i did speak to three out of the four officers who were there first on the scene that night. they were willing to speak to me, and the lead officer who was in particular very interesting
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because he was the one who made the basic decisions. he was the priority unit as they're called on the scene, he makes the basic decision about whether to arrest and whether to take people cite people and take them to jail. it was his call, and i had people inside the harris county district attorney's office and judicial system in harris connecticut tell me that no other officer on the force, probably, under the circumstances where you encounter people in a home would actually have cited them and taken them to jail. but he was the one, and so in a sense, the gay civil rights movement was lucky in getting him to arrive first he was the closest to that department that night and arrived first and therefore the one and trusted the decision making authority. if it had been any other officer, the case might not have happened. he was interesting in himself. there were plenty of people
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willing to talk to me including the judge who was the first judge who had jurisdiction over the case. and the officer himself i asked him at one point during the interview have you ever been subject to a complaint from a citizens for any reason? ofover the course of your duties. he laughed and i said, why are you laughing? and he said, well, i have the largest complaint file in the entire harris county sheriff office. so then i started to ask him, well, can you tell me about some of those allegations against you? he proceeded to regale me with tales of complaints that had been filed against him. he said they were meritless, never nevertheless, appeared to be humorous. he was sent to anger management class. he was taken off patrol and sent to work in a jail. which is a terrible demotion for
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a patrol officer. so he really had an extraordinary record, and as i said it may have been fortunate for the gay civil rights movement he was the first to arrive on the scene. . >> host: didn't you say that people referred to him as sir, he was accommodating. if they were unpleasant, he took a different view. and i would assume john lawrence was unpleasant when this fellow officers burst in to his pardon apartment. he didn't know anything about the supposed man with a gun. >> guest: right. you have lawrence and garner sitting there. according to lawrence when the police came in. he was sitting on the couch and garner was back in a kitchen area, which was visible from the front door out the back of the dining room table as much as fifteen feet apart. they were not having sex. they never had sex. the police burst in and start questioning them about who has a
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gun, and for them, it comes out of nowhere. he reacted to quite angerly. he had been drinking a bit. he acknowledged that. he was engaged in the form of civil disobedience, and as i said in an interview it was about six months before he died, he told me about what had happened and said the police had told bald face lies about the men having sex. he was upset about it. that's part of what drove him and i think garner, the part what drove them to challenge the arrest which they ultimately decided to do after, you know, some persuasion efforts. >> host: yes. the story gets more interesting as it goes along. it's the case, isn't it, that john lawrence and garner preference was to say, plead not
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guilty and say it was totally false report. we were not having sex. the police burst in, got angry at us and dragged us off to jail for something we didn't do. on the other hand for the gay rights lawyers, i take it the view was the outrage here is that the laws are still on the books. they made the strategic decision to have them what encourage or persuade john lawrence and garner to plead no contest, to assume the facts the police said were true and challenge the laws. that's exactly right. john lawrence and garner were taken to jail that night from the apartment. they were put to orange jump cut -- suits and put to the jail as anybody arrested for publics intox that night. they were put in front of a
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judge without any representation. they have to enter an initial plea and the national plea the choice was to plead guilty, to plead no contest or plead not gment. they haven't for the first time they have been charged with having sex with each other. now from their perspective, if they are right they weren't actually doing that, this was as john lawrence said a lie. a fabrication, they were stunned by this, and so they plead not guilty. we did not -- we are not guilty of the offense. and they didn't have any larger civil rights goals in mind. they had not been involved in any gay civil rights efforts. not contributed toward to scare organizations. they were people leading their lives. their inly nation was to fight it. maybe they would end up paying the fines. they had a sense that injustice
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had been done to them because they had been falsely charged. they did meet with attorneys local attorneys and how the case got to the hands of the attorneys is that itself is an interesting story. we can talk about, if you would like, in a bit. they did a meeting with the attorneys that were involved and land a legal and national gay rights group became involved and they were expert in the areas. they said look here are the three options. you can plead not guilty and we these officers can put on the stand and ask them to recount this tale of sexual dare do they say happened, and, you know, we'll see what happens. my guess is they would have been acquitted if that had happened. or you can plead no contest or not guilty, and there's not much a difference as it turns out between not guilty and no contest. they plead no contest meaning that the only facts that made the way up through the courts
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was that facts allegeddedly -- alleged by the police. the 69-word said that we entered the apartment and saw them engaged in the act. there was no trial or cross-examine or anything. you accept what the state says happen and say if everything they say is true nevertheless, the arrest is unconstitutional. it violates the constitutional rights to arrest them under the circumstances. in a meeting they had with the lawyers they explain what the importance of the case was. it wasn't just -- it was not just about them. the sort of thing could happen again. it had happened in the past. the laws had a larger effect that we described earlier on millions of gay americans, and that meeting occurred in mid october of 1998, which was you may remember about the time that
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matthew shepard was left to die on a fence in wyoming, and it captured the nation. all of this is going on, you know, at the same time, and they were persuaded lawrence and garner were persuaded there was a larger cause than the factual innocence. the police should not be allowed to do this the in the future. >> host: it was a big decision. they were taking one for the team and admitting something they say did not happen. essentially pleading guilty to something they didn't do as a way to get a real case to challenge the laws. >> guest: that's exactly right. >> host: is the case, in a lot of other gorses dictions i would have thought it would have gone away from the prosecution of the state side. they wouldn't have prosecuted the case. i take in the end texas prosecutors and texas courts were not willing to have the
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case go away. >> guest: yes. in fact the gay rights movement in the case, it was lucky or blessed one might say, in the police officer who arrived first and made the basic decision. there was also lucky, fortunate, it had a set of prosecutors and district attorneys and judges, ultimately who would not dismiss the prosecution. i think the harris county district attorney was backyard to a corner. the district attorney is elected and the county itself is conservative, has a traditional social views, views on social issues, and once this matter got to the newspaper that these two men had been arrested, they were going to challenge the constitutionality of the texas law, it became very politically difficult for the harris county
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district attorney's office to back off as a prosecution. they were quoted in the paper as saying, that sort of e qvc kuwaiting on the case saying it might be a bad law. we don't have any choice about what laws to enforce. the best way to get a bad law off the books is to enforce it. that's exactly what they ended up doing. it does turn out, by the way, that one of the early prosecutors in one of the lower courts in texas was herself closeted lesbian at the time. she didn't -- she could have entered a dismissed the prosecution or asked the judge to dismiss it and she did not do so. she said she was required to allow the case to proceed she didn't have any discretion in the matter. >> host: in the end the state was willing to defend a law. why don't we take a quick break. >> guest: sure.
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>> the united states discovers that with our flights our surveillance flights over there and that tension builds and we have a quarantine a block around cuba. one of the things that happens during the time the soviet submarine is found by american ships and they start to drop missile charges, death charges on soviet submarine. they knocked out the electronic call system. carbon dioxide was rising. people were passing out inside the submarine. they have no communication. the commander of the submarine says lower the torpedo. let's attack. the war probably started already up above. we are not going to sit down doing summer salts. we're not going to disgrace the
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country. they set it ready to launch. fortunately, one of the other commanders on the ship, at the lower rank, talked him out of it. he might have safed the world. >> this is so close to the edge, and it was one of the scariest moment of mankind. >> it was. >> it was a moment in human history. >> we didn't know this. we were teenagers. i just some grateful. i mean, that's all the criticism of kennedy and all this after quarterback,my god we wouldn't be here to talk. director oliver stone and peter on the untold history of the united states. saturday night eastern on booktv after wards. part of four dais of non-fiction books and authors through new year's day on c-span2. so the decision to charge john lawrence, and garner, and the state willingness to defend their laws that seemed
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vulnerable set the case on the road up through the courts. but could you tell us a little bit about the history of the sex laws. on the one hand it seems like they have a long history, but i took from your book they have a some sense recent history rip. the 1970s, they were targeted at gays and lesbians. >> guest: that's exactly right. sodomy laws in general, laws that prohibited at one point all nonmarital, nonprocreative sexual acts go back hundreds and hundreds of years in the west and go back to england and the colonies and every state, in fact every state had some version of a sodomy law as of the 1960. so in a sense as the supreme court said in bowers v. hardwick they were laws of ancient.
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the supreme court did not have a very deep or sophisticating understanding of the history of the laws. they were not laws that were targeted on their phase only at gay sex. they targeted both hetero sexual acts like oral sex. in every state until the late 1960s and early 1970s that is precisely the way they were written. in the mid 1950s and very influential legal scholars in the united states and england suggested a number of the archaic sex laws be removed and sodomy laws among those. that began a process by which the states began repealing the stated sodomy laws. that process proceeded through legislatures and state courts for a period of four decades. more than four decades.
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.. it decriminalized an old law that was called seduction i promise of marriage. a couple of others and it decriminalized beastie audi. so as of 1973 in texas, you
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could legally have sex with another species, but not with another person to whom you are committed and involved if that person was at the same sex. that's the remark will message that texas was sending and try to defend the law on the basis of traditional morality. have never heard of a traditional morality that allows inter-specie is an adulterous accent was heterosexual sodomy, so it was a very selective defense of the law. >> host: to some degree it was a reaction to the gay movement. the gay movement is just getting underway and to some degree this is a backlash. >> guest: that's right. in the 1960s with the women's rights movement and relieve the revolution in general was a
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backlash. in the gay movement began the modern phase in earnest in the late 1960s and 1969 in new york city but there was a backlash against the police shutting down gay bars. that spread across the country, including were gay groups began to form. these are early on in the 70s fledgling groups. laws like the law were an attempt to hold onto as much of the traditional morality as the state particles onto, but certainly not give ground to gay and have one. every some debate over whether the law should subject gay men to punishment in prison and some legislators resisted that because they fit punishing men
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in prison is not a punishment, that they would enjoy an all-male environment. this is the kind of thing texas legislators were saying about gay people. so the gay writes that make outgoing and a number of cities the text is adventurous and early successes in the late 70s and early 1980s and then it got slammed down in a referendum on a very narrow civil rights ordinance protect him gay city employees in january 1985 that itself is an example of the backlash against gay writes. every year the legislature refused to repeal this law, even though it was asked to do so. the texas courts turned away and a challenge to the lot they say nobody's been arrested.
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>> host: so what happened with john laurent? out of their cases about through the court critics >> guest: story begins from the moment they are best day in joseph quinn, delete deputy files his charges. those charges then go into the justice of the peace court because that is the court with these really minor criminal offenses, class c. misdemeanors. it wasn't obvious at that moment that this case would ever make its way to the supreme court because there's no sodomy law alert telling gay writes that it is that some jurisdiction in the county has been arrested. they could as mdma could read their fine after they got over their anger or they might have paid a defense attorney who
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didn't care about any gay writes causes to want to collect a fee might've negotiated something maller portman. the reason i got into the hands of gay rights act this is the judge in the case and it had a clerk who was a closeted gay man and saw this charge conmen the next morning after the men had been arrested in the third and knew immediately something was wrong. this officer was well known in the jurisdiction and he saw the charge sodomy law and couldn't believe there is such a charge. when he tried to look at the code to enter the mr. justice m. coming he didn't have a code. there is no code for the offense unlike most of the offenses they found coming had to look it up. they may have had to make one
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up. >> host: i was surprised there such a criminal charge and even people who worked in the court system have never heard. >> guest: no one i spoke to in the case, except for one act this in his name had heard of anyone arrested on this kind of a charge, so it was quite unusual. he told his partner who is a closeted deputy in the harry's county sheriff's office had been a supervisor over the lead arrest officer. he began to the connections all over this case. it's a sans judicial world. his partner was a closeted official sergeant in the sheriff's office. told his partner about this and said they couldn't release it. but they had no inkling this is a matter of cost additional dimension. so the night after these men had been arrested there talking about it and they go to their weekly trip down to the gay are
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with their crossbeam with the bartender and they tell the bartender, guess what we saw quite somebody was arrested for sodomy last night. the bartender happened not to be an expert who is in vodka martinis, but was also a gay rights activists. once he heard of this, he made really thought this is the case if omitted a generation for and it could go the supreme court. he wasn't an attorney, but he knew it had potential given the fact they were arrested in their home. so then he got in contact with lawyers who began pursuing the case in texas courts. initially unsuccessfully. initially unsuccessfully they went in front of the justice of
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the piece about two months after the arrest occurred in november november 1998. the justice of the peace had no power to strike down the texas sodomy law, so he fined them $100 each. they were hacking said that's not enough for us to be able to the po. he had to be fined more than $100 to be eligible to repeal your conviction. so they ended up going back to the judge asking for a higher fine on their client. would like to recharge the higher fine and they agreed to the higher fine against these defendants. so they go back to the judge in a somewhat surprise to hear a defense counsel asking for more punishment. but he granted higher punishment and the proceeded through the
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county criminal court, where the judge didn't have much power to overturn the texas sodomy law. a couple of steps below the supreme court of the united states. and there they confronted three parties and elected republican judges from very conservative areas and they were warned, you don't have a chance in front of the judges. they're not going to listen to anything you say. it turned out there were quite surprised. turns out to the judges at the end of the day ended up being persuaded by their argument that this is a violation of the texas equal rights amendment, which prohibited discrimination on the basis of sex and whether or not
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you're punished depends on the sex of the partner you are intimately. very steep over case and the end of the ruling that way with a tremendous political backlash and the republican party in texas come in the state was held within a short time after their decision in the state convention issued a resolution rebuking them and calling them to reverse their decision. so they took up the issue and did in fact reverse them pretty quickly. >> host: said that upheld the course as is. to the texas supreme court hear the case after that or just refuse to hear an appeal? >> guest: in texas or the equivalent of two supreme court spirit one for civil matters. the texas supreme court and the court of criminal appeals handles the highest court for
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criminal matters. it went to the court of criminal appeals, which sat on the case for a year, saying nothing, not even whether we consider the issue, whether at order briefs to be filed and after that year is over without explanation, he said you're not going to hear this matter. say that your past and once that decision is made, the next step, the only next step was the united states supreme court. >> host: yesterday been focused from the beginning? >> guest: land i have a sense this case is going to go as high as the united states supreme court. interestingly if they had revealed among the two judges who ruled for them in a texas appeals court, they wouldn't have gotten to the supreme court. >> host: so many oddities. all along the way it was amusing
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in its own way how it got there. nonetheless, supreme court justices were very aware of this issue. they knew bowers v. hardwick had been must criticize since then. lambda wanted to get another case. they filed this petition and in 2002, 2003 the court granted the petition. >> guest: in the fall of 2002, the grant the petition to hear the case. >> host: sort of a legal question. there were two issues that i remember correctly. when was the liberty privacy claim. the other was the equal protection claim that gay and seven are denied exactly the reason you stated. these laws were clearly discriminatory in the first claim is the liberty privacy issue of bowers v. hardwick. i'm sort of in the category
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thought that the likelihood that the court would take up the case, focus on equal protection. instead, they focused in the end on the liberty privacy claim. tell us what's the significance of that and why -- did you expect that at the time to be the way they handled the case? >> guest: i didn't expect they would take up the liberty and privacy claim as you put it. i think most of the attorney at the core were were going to overturn the texas sodomy latte would be on the grounds of equal protection. the privacy are fundamental rights argument says the government has no place in your bedroom. they can't some of those what to do with their own intimacy. the quality of equal protection argument says that the government decides to come in and start telling people what to
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do, they have to do the same for everybody. you can't just select a small group april, 2% of the population and tell them they can't do with the 97% can do. based on the fact the court had decided this issue 17 years before on the liberty and privacy grounds and sat at the time that those arguments were advanced facetious against the litigants in that case. it was a great sense accord that on those counts, but on other grounds. that's important because if the court had just decided the case on equal protection grounds, then it would be issuing a decision which is start in the texas sodomy law, but allowed the bowers v. hardwick decision to stand, which had done so much damage. second, the state of the state you can hound a sodomy law. you just have to apply to
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heterosexual and sodomy. everybody associated sodomy. in the popular mind this was what do and people didn't understand it applied to it any heterosexuals to us on the bedroom. so what if then some ways a disappointment, although it might have been significant in itself. what joins these two arguments though, this liberty and privacy argument and equal protection argument on the other hand is the basic narrative that the land of legal attorneys sketched out for the case. they wanted tunica mainstream presentation. they want to show the court that there was a connection between the intimate lives of gay and lesbians and establishment of
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relationships and latino families. that's something the supreme court didn't the 1986. it didn't be 2003 and lambda legal frame the case that way. they wanted to show the lord in striking down the texas sodomy law they would not lead the nation. must have looked upon behind. they were only 13 states who still had them and those were almost entirely unenforced against private activity. they did not want to share the court with the possibility was leading the nation into new uncharted territory. it could be safe in strike down the texas homosexual conduct law. it is throughout justice kennedy's opinion and references to the importance of sex in defeat and adults i've been so far as it helps to build
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relationships. >> i can't think of another area for the public mind has changed so much in 20 years. the court was different in 2003 that i was in 1986. but the whole country was different. i remember it the 196 decision, even than people thought it was a little bit extreme but the court would've upheld laws in 1986. by 2003, it seemed like something that could still exist, that persons could be arrested, taken to jail for conduct in their own apartment that threaten no one ordered no one. so it did seem very -- it seemed like the whole country a lot had changed and as you know when the court decided that case, there is still a very sharp division.
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it ended up six justices voted to strike down the texas law and there were three dissenters. tell us about the divide in the court on that. >> first of all, you're quite right to note there is a huge shift in the court and in the country between 1986 in 2003. 1996 the justice said to the clerk, i don't know any gay people that are not the clerk he was speaking to was himself a quad did gay men. in 2000 parent post that was about to get up and deliver his oral argument, someone whispers recent is here, justice o'connor has just sent a baby shower gift to a former clerk and her lesbians partner. the sweeping change occurred in the country, those two moments really do offer that -- those examples. >> host: but there's still a
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sharp divide on the court. >> guest: the opinions are fractured. justice kennedy rules on the grounds of liberty and privacy. justice o'connor, who would then in the majority had rejected the privacy and argument was on equal protection grounds, what other people thought the court would do with the case. then you've got three of those in the minority. justice calleja, chief justice rehnquist and justice thomas. justice calleja announces from the bench a vehement dissent which says the court has taken signs and the culture war that it's not behaving in a fashion tied to the constitution in any way that would mean a slippery slope to things like it could mean and widespread affinity and he said gay marriage. and justice thomas writes for
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himself that while he believes these laws are uncommonly silly to use that expression quoting from an earlier just to. if you're a texas legislator, he would repeal these laws. there's nothing in the constitution protect a right to privacy. so he provides that their descendents hope. >> host: the kennedy scully a division is so interesting because ronald reagan appointee from the late 1980s. both of them cap leaks in the 1930s had some similar background. but they agree on a lot of things on criminal cases, corporate cases. but on the culture war cases, justice kennedy always seems to be much of a california republican, a completely different instinct than justice
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scalia. justice scalia was i remember a meeting of those opinions and it is just such a stark divide because kennedy spoke about the importance of giving respect and dignity to gay and lesbians, that their relationships deserve the dignity of the relationships. it is such a sympathetic portrayal in so much in line the importance of relationships for gay couples. he said this is not a case. -- sex case. this is about religion. justice calleja sort of cut through the air with the strong dissent. i wanted to mention that he did make this point, don't be fooled by what anyone tells you. this is going to be about marriage, about same-sex marriage.
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to that extent, justice calleja's prediction has turned out to be largely correct, has meant in the year since then? >> guest: is quite possible. we'll see what the court does it marriage case if it takes the marriage case, which it has discretion to decide about. he did say that the court had taken out the constitutional substructure, the basic underlying principles that allowed the state to distinguish between heterosexual marriages and marriages for gay couples. so he said we can't legislate on the basis of morality, our moral view that homosexual is on and heterosexual is right, how can we distinguish among gay straight couples. we can't or because one can procreate because we allow older
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one sterile cup rose to get married. he said there's no rational reason left to prefer one. i guess in the case comes up as it's now moving up through the lower courts, the gay right litigants will be citing justice scalia's dissent is the fact duly, correctly reading the decision as having undermined the exclusion of gay couples from marriage. postcode isn't the flipside is that who ever writes opinion either a same-sex marriage would be citing justice kennedy's phrases about the important of dignity and respect for gay unless you couples. >> guest: you can find support for both positions and justice kennedy's position, but weissert
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many phrases in his opinion in lawrence versus texas about the dignity of gay american and importance of relationships to them will find their way into any opinion. >> host: we've only got a couple minutes left. i beg to that view, he did reporting on this and you talk to john moran and both men have passed away in the last couple years after the case was decided. tell us about lawrence and garner. >> guest: they were both people who grew up with a humble background. not much education. tyrone garner is one of the tents of 10 children in the lack that his family. he never had a permanent home, never owned a car, shifted from house to house. shawn lawrence did have a steady job as a medical technologist, but neither he nor tyrone were
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ever involved in any kind of civil rights movement for civil rights causes until the case came along. tyrone garner died in 2006 about a year after it interviewed him and john moran said last november in 2011 about six months after my second interview with him, in which he told me that whole story. >> host: unit to set the record straight about what actually happened in the department. he never got to tell his story at the time this case is coming on. i take it he also was proud of the case than what it had accomplished. >> guest: yes, both men are part of the case. they thought he had done some good for other people. would be part of legacy and they thought it was important that the state ever be able to come in and arrested people either for having sex with each other
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or claiming they had sex in making that enough is the basis for an arrest. i was important to both of the men. >> host: it was great talking with you. >> guest: thank you, nice to talk with you. >> host: that was "after words," booktv signature program for authors are interviewed by journalists, public policymakers and the legislators and others familiar with the material. "after words" airs every week and on booktv, 10:00 p.m. on saturday, 12 p.m. in 9:00 p.m. and sunday at 12:00 a.m. on monday. you can watch afterwards online. go to booktv got bored and click on "after words" industries and topics list on the upper right side of the page.
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>> host: so they put the missiles in cuba. the united states covers that with our flight over there. and then the tension builds and we have a quarantine blockade of cuba. one of the things that happens is that a soviet submarine is found by american ships and they start to drop assault charges on
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the soviet submarine. they knocked out the electrical system. the carbon dioxide was rising. people are passing on inside the submarine. they had no communications. the commander of the submarine says let the torpedoes. let's attack. it probably started already. we're not going to be doing somersaults than the more starting. the senate ready to launch. fortunately, one of the other commanders who had a lower rank talked him out of it. he might save the world, -- >> but this is so close to the edge. as teenagers -- passengers said we didn't know this, we're teenagers. but that's while this criticism
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of kennedy in office quarterbacking. but we wouldn't even be here to talk. >> director oliver stone and peter koznick on the untold history of the united states. saturday night at 10:00 eastern. part of four days of nonfiction books and authors through new year's day and sees and two. >> the authors report that they agree with the initial goals of affirmative action, but now believe the system hurts more than hopes minorities. this is about an hour and a half. [applause] >> thank you for the introduction and thank you to roger and cato for sponsoring this event. i'm very grateful to have such a great kickoff to the book, which
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is actually being officially published today. as roger mentioned, i am going to start and talk a little bit about the mismatch idea itself and some of what we found in the book. stewart will try to relate this martin fisher and what will be happening tomorrow. i'm particularly glad to be doing this at cato because it stood for a lot of the values that i think are in the book. i first became aware of cato and the early 1980s when i was mostly doing community organizing, but in the evening thinking about policy issues and whether i should go back to graduate school and become a policy type person. a big issue at the time of social security reform. i started trying to analyze what was happening and came up with this idea that social security was providing enormous
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subsidies. people were providing the benefits than they paid in. the subsidies for large as for the upper middle class. so i thought this was a great revelation and should be part of the policy debates. nobody seemed to be talking about this. but then i found a little book published by cato, which figured it all out and was trying, not with much success to get those ideas into the policy debate. so cato has always meant to me willingness to look at the facts and figure out what's going on. you have to be sort of interested in how politics is going to work, but the first thing you want to do is figure out the dynamics and take an empirical approach. another analogy to our work on affirmative action is that at the time cometh back in the early 80s, imagine how easy it would've been to fix social security problems on a sound he
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says. 30 years later is a much harder problem to deal with. affirmative action is the knowledge is because today we have perhaps the greatest degree of racial peace in many senses the greatest feeling of racial justice in the 90s case it ever had. this is a good time to do with this issue lingering for a while. we may not. we may make it harder later on, but i hope progress is here. as roger mentioned, i first got interested in the question of "mismatch" when i was innocently working on administrative issues for the law school where i taught. is there interested in the idea of academics for, how admissions were husted is that after they graduated. it didn't take long to sort of look at what was happening, to
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send something like mismatch might be important. we were in east l.a. who had a 90% chance of graduating, but a 50% chance of passing the bar. both gone. >> thank you. >> so that meant only 45% of students we are admitting when i'm too go through law school and got their law degrees. it wasn't hard to look at schools in los angeles, where students of preferences would see that those students seem to have much better outcomes. so i started looking into this summit for relevant databases that could help test it. and by 2004, 2005, developed a paper that first discussed this issue in the law school context. and found this is really quite a large problem, that the great oak of minority students,
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especially african-american students are receiving much preferences. typically on a couple hundred s.a.t. points or 10 to 1505 points. very generally very poor for this group. only a third of blacks starting law school in the early two thousands of graduating passing the bar in the first 10. this was perfect in life is substantial, large majority of people being helped by preferences. what really struck me when the article came out with the institutional response. the collect of unwillingness of great many legal academics to engage this at all. the instinctive reaction of institutions to further restrict data that is extremely hard to get an furthered scare processes that were not revealed here the factors allow school in the
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country or somebody received much preference could get information about what their prospects for if they went to a particular law school. so i became interested in trying to look at this more broadly and the foundation contacted me 2007 there interested in trying to get good, empirically based, ideological research done in together we commissioned to shake loose data from various petition antiscience social scientists who want to work on these problems. over time through that effort and three other independent offers, a lot of mismatch research has been done and published an excellent journalist. we now know science mismatch is a problem, that although blacks are more likely than whites to nature when they go to college, they're much less like you to get stem degrees, science engineering that degrees if they
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receive preference. university of virginia found to be taped to blacks or two students of any color, one who receives a preference, one who doesn't, the preference is a 40% larger chance of dropping out of science on this path through. mismatch also affects academic inclined students who receive much preferences for that to become university professors are going to academics someday. predominantly receive low academic grades, cluster at the bottom of the class in the side economics is not for them. the biggest mismatch experiment was in california were voters passed proposition 209 a large cause a natural experiment of what happens when preferences are banned from entire university system. the results aren't extremely curt for anyone who bothers to
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look. but then i have to nurse at implementation of research quality, the number of blacks in the university of california system has gone up to 30%. the number of blacks receiving bachelor degrees had gone up to 70%. the numbers were even larger for hispanics. gps had gone up. virtually every outcome had been nature mad at permit. the only thing the critics point to as a problem with prop 209 as there were fewer african-americans at ucla. this is not actually a bad outcome. those students admitted were still going into schools. they have much higher success rates rate than because berklee ucla had hoarded so many student, having the reputation to do so, actually increase across you see campuses.
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one of the things we talk about in the book is so-called cascade effect. when only two universities admit students come a four page graphic in the book to illustrate this. the most elite schools have the first pick of the students they would like to admit their preferences. cisco submit not only the very top african-americans, but they also admit students in the second, third and fourth years of academic achievement. this means in the second-tier schools when she's preferences, they have to start on the latter. ironically that means the largest preferences are not used by the most elite schools. they are used by schools in the theater for care of colleges. this is important for a couple reasons. one is it helps explain sort of the strong nature defense of
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preferences that often led by leaders at the most elite universities. there often when boeing come to mind because they look at their universities and the effects of preferences are significantly more moderated. the worst effects are at the, third and lower tiers. the fact that the fact is that it is that only 20, 25% of all colleges in america use are highly selective institutions. the absorb so much of the pool of minority student that even schools come as a second-tier universities that threshold requirements to get and are still going to have a large disparity in students and qualifications, which is aggravated by the use of preferences. that means mismatches on in that fix a broad swath. how much time do i have left? >> another to commit three
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minutes. >> one of the things we talk about in the book is another empirical side of racial preferences. besides it's got to be prominent, which is the diversity entrance at schools and have been a diverse climate. one of the interesting things research has shown in recent years that we talk about in the book is how much does diversity effects are not very debate the economic distance of schools. in other words, we admit students at large preferences come at a much less to socially interact with peers of other races. this has been very well documented. there is also self.effects from low grades that reinforce. one study found this unit who believe that they were admitted on the preference are vulnerable diversity research fits very
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nicely, fits very closely into mismatch findings. so with all this, half the book talking about these effects go into the problems of institutional behavior and that's a really large part problem. it's one thing to demonstrates the effects. but it's another to try to get an institution of higher education to do with that. then look at the lineup to see how incredibly uniformed the solidarity of higher education behind the existing preferences regime. it's a nonstarter. it's difficult to get these issues raise and institutions to want to follow a different path like george mason law school, which really chap in the book about find themselves at the mercy of committees, which want to enforce pretty rigid and the racial standards across all colleges. one of the things they find this
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even the supreme court highs complicit in mass past that they had implemented standards, but justice o'connor applied them in such a loose way that it's been well documented by some of the research we've done for schools whose larger preferences were mechanically after the recruiter decision in 2003. so he tried to read a book that would be interesting to experience, important to engage in, but also accessible to a much broader leadership. we try to write up the ghost is passionate about policy, the passionate about the scale and severity of the problem. will have to tell you that if we succeed in them. thank you. hotbot >> thank you, professor sander.
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we are not going to hear from professor sander's co-author, stuart taylor, co-author of the book today, bowers v. "mismatch" you can purchase it outside, otherwise go to your local bookstore or to any of the online services to get a copy published by basic books. stuart taylor is an author and freelance journalist focusing on legal and policy issues. he also writes for national journal, can she became editor, where he is a contributing editor. mrs. stanford law school editor. he's also a nonresident fellow at brookings institution. his current focus is on constitutional law from the media lab and the supreme court. he has been a senior writer for american lawyer media. he has been a distinguished lecturer in writing at princeton
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university, supreme correspondent for "the new york times" in an attorney with wilmer cutler. he's a graduate of princeton university and harvard law school. please welcome, stuart taylor. [applause] >> thank you very much, roger. please accept my heartfelt thanks to you and to cato for giving us this opportunity to try and talk about her new book. as rick said, i'm going to focus on the case in the supreme court, give the basics and then talk a little bit about the relevance of our books, evidence about "mismatch," et cetera to the case. we didn't know about this case when we started the book in the case is not well on the issues the book focuses on come of the
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solutions to the issues book focuses on is pretty similar to solutions to the overall racial preference problem from the basically reducing preferences and making them more transparent. abby fisher, abigail fisher is a student who brought the suit. she was not admitted to the university of texas. they take roughly 10% -- they take roughly 85%, 90% of their students are the top 10% famous visitor in that during the graphic content side of your high school class, you're automatically admitted to the university of texas at boston. she was not in the top 10%. she was close, the shoes that a good school. she had pretty good grades, pretty good average. she thought she would've cut name but for racial preferences. she knew people should that were less qualified than she was hit atman, the screening test scores are lower than hers, et cetera.
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so she sued, saying she should have been rated. she meanwhile went to louisiana the universe be congratulated, better suit lives on. she lost in the lower courts in texas, which are obliged to apply strict way supreme court precedent. the lower courts in texas in the u.s. court of appeals for the fifth circuit both how the university of texas plan modeled on the university of michigan law school plan had been upheld into the very thing grutter v. bollinger that have followed the plan closely enough so the court was obliged to uphold it. even one justice, judge garza, who said he hated racial preference isn't about to strike them down said that he had no choice but to uphold this one has been under supreme court precedent. by the way, seven of the 16 justices disagreed and thought
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you could strike it down under the career precedent. so the case finds its way to the supreme court and it's likely to perhaps become the most important case in history on racial preferences. not so much because there's anything that extraordinary about this case, but the composition of the court has changed his 2003 cases which could be fairly green light to racial preferences, very large racial preferences as long as they're camouflaged beneath the kind of complicated, holistic thing. holistic is like the word or sprinkle holy water over preferences. so here's how it worked at the university of texas. they have an academic index for people outside the top 10%. they have a personal achievement index and the personal achievement index has many compliments and one of them is raised. the personal achievement to be
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born black or hispanic. it's not such a good achievement to be born hispanic -- i'm sorry, asian her way. literally that's what they call it, personal achievement index. we emphasize many personal achievements reconsider. race is only one little thing. we often don't take into account. it's only a little finger on the scale. the numbers tell a different story. the best way to tell whether there's a racial preference in operation, whatever they call it, is to compare the credentials of different racial groups after they arrive on campus. when you do that comparison from the most recent numbers we've seen 2009, looking at university of texas freshman accepted outside the top 10% system, the cats were 467 s.a.t. points between the mean asian score on
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the s.a.t. and the mean plaque score on the s.a.t. only 390 points on the s.a.t. the senate 2400 scale. those are an enormous racial gaps. the idea this is a tiebreaker of little finger on this is does not withstand analysis. this is pretty true in almost all universities in the country. here come as elsewhere, the racial gaps are very large. from a mismatch standpoint, that that the students who are at the lower and of those camps are very likely to struggle academically and how the kinds of problems rick describe. those problems are not the focus of this litigation. abby fisher's complaint were she was discriminated against for being white. she wasn't talking about how black students fared in this traditional approach. university of texas claims were
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just at the way the university of michigan law school did it, so okay. there's a number of distinctions between the cases we think will help now more skeptical about racial preferences court, straight down his preferences. they wouldn't have to overrule the greater case because the greater case justice o'connor articulated to limit the size and duration of racial preference is to avoid abuses. but she didn't really enforce them. they remain on the books. her supports to resort to race. the university of texas to you to have this 10% plan. they get a lot of racial diversity and other diversity for the 10% plan. did they really need to use racial preferences on top of it? is one argument in favor. the court has said no racial balance, meaning you cannot try
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to mirror in the composition to racial abuse daily population. that is unconstitutional. the court has said. in texas although they haven't gotten used to racial proportionality, that is an explicit goal of their plan. we went to proportionality with people statewide. another principle was this isn't supposed to go on forever. we think it should end within 25 years. none of those 25 years are gone, so universities are supposed to prepare to face a racial preference is in the next 16 years. no university we know of intensity when it needs except perpetuate racial preferences as far as the eye can be for decades, maybe 50, maybe 100 years. one way the manifest intention as they want to critical mass of every racial group in every
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class. forget three system of preferences, which channels of racial groups into different classes or blacks are dropping out of science and going into other cores, producing critical mass. so this will go on for a very long time. so as rick mentioned, since greater, his research and the researchers dennis traded to universities and particular law school is coming university of michigan undergraduate school in their plan to start down by the supreme court 2003 because they had an explicit racial points to send. if you're black or hispanic oration you get 20 points. if you had an average set of a b. average in high school you get 20 points, one full great point. palazzolo bit too explicit for justice o'connor's case. she struck that down, but under
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the supposed that holistic system that they substituted for, they have used larger racial preferences at the university of michigan and they had before they were struck down. this doesn't seem to be consistent with the spirit of the supreme court decision in the same has happened a lot of other places. the evidence suggests large racial references of 202 met 400 s.a.t. points. the public at some gpa between the mean scores of black and white students and the selective schools. another principle stated in cruder wizards uncrossed additional to use racial preferences to the extent of the newly harming members of any racial group. that's a quote. we argue and we think the evidence shows preferences icu syntax is unduly harm members of every racial group.
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the unduly harm the nation's primarily first and foremost are excluded and whites excluded like abby fisher because of their race committee might otherwise have been admitted. we think they duberstein to black and hispanic students who are misled into thinking they are well-qualified to have strong academic records that university of texas and you get there and find out they are not going to have outstanding academic records. dopey like you graduate. so at the bottom of the class. i'm not talking about black and hispanic students per se. the top students in the class may be black or hispanic students of any race, and this is usually black and hispanic reference admitted how much preferences are not likely to do well. this is consumed from them. one minute. what does this have to do with the research? to remedy we think the court should adopt to cure the problems abby fisher complains that is not to ban racial
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preferences. roger clegg will make a strong case for doing that. our favorite remedy is total transparency. full disclosure of how the system works, how large the racial gaps are and how people fared worth a large racial groups. that's number one, and measures a minority students know what they're getting into and you can make intelligent public policy about matters kept secret as to how they were. the second would be no racial preferences can be larger than whatever socioeconomic preferences the same school has. it is averaging for children of black doctors and lawyers or hispanic doctors and lawyers to be admitted it had a better qualified children of white plumbers, seamstresses, working-class people. so this system operates contrary to economic egalitarianism.
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it makes america worse, not better. i better stop before roger castillo hook. thanks. [applause] >> well, thank you, stuart. as you can see from the conclusions of the book that he just stayed in, these two folks over here would never be confused as card-carrying conservatives or libertarians. in fact, anything but that for weeks and are, based obviously on the interest that i read. stewart on the other hand would certainly pass as card-carrying moderate and never found any issue on which he couldn't stand the one hand and then on the other hand. [laughter] in any event, we are now going to hear from to critics from either side on both the book and the case. first firm roger clegg and men
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from alan moore's sin. roger craig is president and general counsel of the center for equal opportunity. he focuses on legal issues, including regulatory impact on business and the problems in higher education created by affirmative action. attorney general and the bush administrations held the second highest positions in both the civil rights position on the environment and natural resources division. his house several other positions in the justice department, occluding assistant general and acting assistant attorney general in the office of legal policy. he is a graduate of the alaska will. please welcome roger clegg. [applause] >> thank you very much, roger for the nice introduction and
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inviting me today. thank you for the cato institute and thank you to rick sander and stuart taylor providing this book. i am going to begin by heaping praise on rick stuart for this the beard is terrific. make some extremely important contribution to the debate on these issues. i think an unprecedented contribution in many ways. i've read the book and it's very readable. it's got lots of charts and diagrams for those of you who like that sort of thing. and it's very well written. everybody should buy multiple copies. [laughter] and give them to friends and families. people you know and don't know. it's a terrific book. i should also say some in about what terrific people the author's ire.
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you know, we've got to be smart to write a really good look, but in this area you have to be brave. particularly, more so for them to write a book and for me, i have the two friends anyway. last night and i don't howl around with reporters in academics and people like that very much. rick is an academic. stewart does pal around with reporters. these people frequently take it personally when you start having to incite racial preferences. i am being a little bit humorous about this, but it is true. ..


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